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MUNICIPAL BOARD, DEOBAND. versus ADDL. DISTRICT JUDGE, SAHARANPUR

High Court of Judicature at Allahabad

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Municipal Board, Deoband. v. Addl. District Judge, Saharanpur - WRIT - C No. 5041 of 1986 [2006] RD-AH 14032 (22 August 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Judgement reserved on 31.7.2006

Judgement delivered on 22.8.2006

Civil Misc. Writ Petition No.5041 of 1986

The Municipal Board, Deoband vs.  The Addl.District Judge, Saharanpur and others

Hon.S.U.Khan,J.

At the time of arguments no one appeared for the contesting respondents even though the case was taken up in the revised list hence only the arguments of the learned counsel for the petitioner were heard.

Property in dispute is agricultural land situate within the municipal limits of Deoband District Saharanpur and its management is vested in Municipal Board, Deoband.  The courts below have held that zamandari of the area in which property in dispute is situate has not been abolished and U.P. Tenancy Act 1939 continues to apply over the land in dispute.  Petitioner- Municipal Board filed an application for eviction of Kallan since deceased and survived by respondents 4 to 9 from the land in dispute under Section 4 of U.P. Public Premises (Eviction of unauthorised occupants) Act 1972 (hereinafter referred to as U.P. Act No.22 of 1972).  In the said application it was stated that land in dispute had been given on licence to Kallan and licence had been cancelled hence Kallan was unauthorised occupant liable to eviction in proceedings under Section 4 of the aforesaid Act.  The Prescribed authority decided the matter in favour of the Municipal Board on 24.3.1976.  The matter was carried in appeal and the appellate court remanded the matter.  Again after the decision of the prescribed matter was brought in appeal and again remanded.  In the third inning the appellate authority S.D.M. through judgement and order dated 28.3.1985 rejected the application.  Copy of the judgement is Annexure-1 to the writ petition which does not bear any number.  The title of the case was Nagar Palika vs. Kallan and others.

Thereafter petitioner filed an appeal against judgement and order dated 28.3.1985.  Appeal was belated.  Ist A.D.J., Saharanpur through judgement and order dated 24.12.1985 dismissed the appeal (Misc. Civil Appeal No.108/85).  The appellate court rejected the delay condonation application and also dismissed the appeal on merit.

As far as limitation is concerned, in my opinion sufficient explanation had been given by the petitioner.  Prescribed authority decided the matter on 28.3.1985 and appeal was filed on 3.5.1985.  The ground taken for condonation of delay was that the official concerned was busy in mela preparation.  The Supreme Court in Collector, Land Acquisition, Anantnag vs. Katiji A.I.R. 1987 S.C. 1353 has held that in the matter of condonation of delay court must not take strict view.  Accordingly, in my opinion the few days delay deserved to be condoned.

As far as merit of the case is concerned both the courts below have rejected  the eviction application on the ground that property in dispute being agricultural land and subject to U.P. Tenancy Act 1939 the said land was not "public premises" .  Under the aforesaid U.P. Act No.22 of 1972 premises has been defined under Section 2(b).  Under the said definition premises does not include land which for the time being is held by a tenure holder under any law relating to land tenure.  "Law relating to land tenure" has been defined under Section 2(aa) as follows:

(aa) "Law relating to land tenure" means the Uttar                     Pradesh Zamindari Abolition and Land Reforms                                   Act, 1958, the Jaunsar-Bawar Zamindari Abolition and Land  Reforms act, 1956, the Kumaun and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960, the Uttar Pradesh Consolidation of Holdings Act, 1953 or the U.P. Imposition of Ceiling on Land Holdings Act, 1960, as amended from time to time."

These definitions have been substituted and added by U.P. Act no.28 of 1976 and by virtue of Section 25(1) thereof these are deemed always to have been substituted. Initially in U.P. Act no.22 of 1972 land held by a Tenure holder under U.P. Tenancy Act 1939 was excluded from the definition of premises however, by way of amendment of 1976 through U.P. Act No.28 of 1976 such lands are not excluded from the definition of premises. This point has thoroughly been discussed in the authority reported in Municipal Board, Chunar vs. Additional Sub Divisional Officer 1999 (3) A.W.C. 2706.  

In view of the above the agricultural land in dispute even though was held by deceased Kallan as tenure holder under U.P. Tenancy Act still it was not excluded from the definition of premises.  

Both the courts below have decided the matter only on the ground that the building in dispute not being premises, proceedings under U.P. Act No.22 of 1972 were not maintainable.  There was no serious dispute regarding unauthorised occupation of deceased Kallan and his heirs thereafter i.e. Contesting respondents.  At the first instance the application of the Municipal Board had been allowed. Thereafter matter was repeatedly remanded only to consider the applicability of U.P. Act No.22 of 1972.

Accordingly writ petition is allowed.  Both the impugned orders are set aside. The first order of Prescribed Authority directing eviction is restored. Application of Municipal Board for eviction of the contesting respondents and for recovery of damages at the rate of Rs.400/- per year is allowed.

22.8.2006

RS/-

 

 


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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